Citation Nr: 0813712 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 06-21 475 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a jaw disorder. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Fell, Associate Counsel INTRODUCTION The veteran served on active military duty from April 1966 to March 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDING OF FACT A current jaw disorder related to the veteran's military service has not been shown. CONCLUSION OF LAW A jaw disorder, to include residuals from inservice jaw surgery, was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the veteran's claim for entitlement to service connection for a jaw disorder, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). Prior to initial adjudication of the veteran's claim, a November 2003 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Although the letter did not notify the veteran of effective dates or the assignment of disability evaluations, there is no prejudice to the veteran because the preponderance of the evidence is against service connection for a jaw disorder. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The letter also essentially requested that the veteran provide any evidence in his possession that pertained to this claim. 38 C.F.R. § 3.159(b)(1). Further, the purpose behind the notice requirement has been satisfied because the veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that although VCAA notice errors are presumed prejudicial, reversal is not required if VA can demonstrate that the error did not affect the essential fairness of the adjudication). The veteran's service medical records, VA examination report, and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In a January 2007 statement, the veteran asserted that there were additional inservice dental records from the German dental clinic not in the claims file. However, the inservice dental records of record detail the veteran's surgical extraction and resulting hospitalization in Germany. There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file, to include private medical records. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006); see also Dingess/Hartman, 19 Vet. App. 473. Generally, service connection may be established for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). There must be chronic disability resulting from any inservice occurrence of an injury or disease, and if there is no resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disorder, the following must be shown: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Service medical records, to include service entrance and discharge examinations, are negative for a jaw disorder. April 1967 service medical records indicate that the veteran had intra-oral surgery for removal of the mandibular left impacted third molar tooth. During the surgical removal of this tooth, the distal lingual root fractured and was "lost to the operator's vision." The veteran was referred to a hospital where x-ray examinations of his head and neck consisted of the standard posterior-anterior view of the skull, right and left lateral jaw views of the mandible and laningram investigation of the left mandible and posterior- anterior aspects of the entire mandible. All examinations were reported as normal and negative for visualization of the suspected root fragment. Exploratory procedures to find the root were determined to be unnecessary because the veteran was without fever, had no sensory nerve loss, and had no clinical palpable evidence of retained root fragment. The final diagnoses were questionable displaced root tip into the left sub-lingual and pterygo-mandibular fascial spaces and displacement of root tip of tooth #17 into the mandibular neuron-vascular bundle. In a September 2003 statement, the veteran stated that he currently experiences pain in his jaw. He also stated that "slivers" of bone continue to "work out" from the surgery. In a September 2004 VA medical examination, the veteran reported that he had never had fixation wires or fixation appliances placed for a jaw fracture. The veteran reported that he had never sought medical care for jaw-related problems or taken any medications for jaw discomfort. The examiner noted that the claims file documented the surgical extraction of the lower left third molar, but contained no evidence of bone or tissue loss of the maxilla, mandible, or hard palate, or loss of teeth due to trauma or injury. Panographic and full-mouth x-rays demonstrated no evidence of mandibular pathology associated with the lower left third molar. The examiner found no history of trauma or injury to the maxilla, mandible, or hard palate, no loss of masticatory function, no loss of speech capabilities, and no evidence of temporomandibular joint abnormalities. The examiner found that the veteran's intraincisal opening and lateral excursive movements were within normal limits. Moreover, the examiner opined that small bone spicules or "slivers" working out from the surgical extraction site is a normal occurrence for up to several years after surgery. Accordingly, the examiner opined that the right and left side occasional jaw discomfort experienced by the veteran was not likely caused by or a result of residuals of the inservice left third molar removal. In a June 2006 statement, the veteran stated that he experienced pain in his lower right jaw during the inservice surgery for tooth extraction in April 1967. During the procedure, he braced his jaw with both hands and experienced intense pressure in his right jaw. The veteran stated that he felt as though his right jaw became disjointed. He stated that the dentist showed him the tooth after extraction and that a large section of the jaw bone was attached to it. He stated that he has experienced pain in his left and right jaws since the surgery and that the pain has increased in severity over time. Additionally, he stated that because of the inservice surgery, he is afraid of dentists and has avoided dental care. The Board finds that the evidence of record does not support service connection for a jaw disorder. There is no currently diagnosed jaw disorder. Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). The veteran's medical records do not indicate a diagnosis for a jaw disorder at any time, to include residuals from inservice jaw surgery. See McClain v. Nicholson, 21 Vet. App. 319, 321 (holding that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to adjudication of the claim). Although the veteran reported that he has experienced jaw pain since inservice surgery, pain is not a disability for VA purposes. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted). The veteran did have inservice extraction of the lower left third molar. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury). But there is insufficient medical evidence of a nexus between the inservice surgery and any current jaw disorder. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical evidence of a nexus between the claimed in-service disease or injury and the current disability). While the veteran's statements are competent evidence to establish that he experienced pain during the inservice surgery, his statements are not competent evidence to establish a medical opinion that the inservice surgery caused a current jaw disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (holding that lay testimony is competent to establish pain or symptoms, but not to establish a medical opinion); see also Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Although the veteran stated that he has experienced jaw pain from the surgery to the present, the medical evidence of record for approximately forty years after service discharge does not indicate any jaw disorder, to include residuals from inservice jaw surgery. Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of disorder). Moreover, the VA examiner reviewed the claims file, examined the veteran, provided a detailed explanation of the findings, and opined that the veteran's current occasional jaw discomfort was not likely caused by or a result of the inservice surgery. Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion). Accordingly, service connection for a jaw disorder is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as a current jaw disorder related to the veteran's military service has not been shown by the medical evidence of record, the preponderance of the evidence is against the veteran's claim and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a jaw disorder is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs